Mental Health Act 2015

This Act is the Mental Health Act 2015.

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere.

For example, the signpost definition ‘care and protection order—see the Children and Young People Act 2008, section 422.’ means that the term ‘care and protection order’ is defined in that section and the definition applies to this Act.

Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

A note included in this Act is explanatory and is not part of this Act.

Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Other legislation applies in relation to offences against this Act.

Note 1 Criminal Code

The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1).

The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).

Note 2 Penalty units

The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

Chapter 2 Objects and important concepts

The objects of this Act are to—

promote the recovery of people with a mental disorder or mental illness; and

promote the capacity of people with a mental disorder or mental illness to determine, and participate in, their assessment and treatment, care or support, taking into account their rights in relation to mental health under territory law; and

ensure that people with a mental disorder or mental illness receive assessment and treatment, care or support in a way that is least restrictive or intrusive to them; and

facilitate access by people with a mental disorder or mental illness to services provided in a way that recognises and respects their rights, inherent dignity and needs; and

promote the inclusion of, and participation by, people with a mental disorder or mental illness in communities of their choice; and

facilitate access by people with a mental disorder or mental illness to assessment and treatment, care or support as far as practicable in communities of their choice; and

support improvements in mental health through mental health promotion, illness prevention and early intervention.

In exercising a function under this Act, the following principles must be taken into account:

a person with a mental disorder or mental illness has the same rights and responsibilities as other members of the community and is to be supported to exercise those rights and responsibilities without discrimination;

a person with a mental disorder or mental illness has the right to—

consent to, refuse or stop treatment, care or support; and

be told about the consequences of consenting to, refusing or stopping treatment, care or support;

a person with a mental disorder or mental illness has the right to determine the person’s own recovery;

a person with a mental disorder or mental illness has the right to have the person’s will and preferences, to the extent that they are known or able to be known, taken into account in decisions made about treatment, care or support;

a person with a mental disorder or mental illness has the right to access the best available treatment, care or support relating to the person’s individual needs;

a person with a mental disorder or mental illness has the right to be able to access services that—

are sensitive and responsive to the person’s individual needs, including in relation to age, gender, culture, language, religion, sexuality, trauma and other life experiences; and

observe, respect and promote the person’s rights, liberty, dignity, autonomy and self-respect;

a person with a mental disorder or mental illness has the right to be given timely information, in a way that the person is most likely to understand, to allow the person to make decisions or maximise the person’s contribution to decision‑making about the person’s assessment and treatment, care or support;

a person with a mental disorder or mental illness has the right to communicate, and be supported in communicating, in a way appropriate to the person;

Examples

1 aided augmentative and alternative communication including teletypewriter services, communication boards and communication books

2 unaided augmentative and alternative communication including sign language and facial expression

3 use of an interpreter or translation service

4 use of an independent advocacy service

a person with a mental disorder or mental illness has the right to be assumed to have decision-making capacity, unless it is established that the person does not have decision‑making capacity;

Note For principles of decision-making capacity, see s 8.

services provided to a person with a mental disorder or mental illness should—

respect the informed consent of the person to the person’s assessment and treatment, care or support including consent as expressed in an advance consent direction; and

support and allow the person to make the person’s own decisions; and

be provided in a way that considers and respects the preferences of the person, including those expressed in an advance agreement; and

promote a person’s capacity to determine the person’s recovery from mental disorder or mental illness; and

seek to bring about the best therapeutic outcomes for the person and promote the person’s recovery; and

be therapeutic or diagnostic in nature for the benefit of the person, and never administered as punishment or for the benefit of someone other than the person; and

be delivered in a way that takes account of, and continues to build on, evidence of effective assessment and treatment, care or support; and

be provided in a way that ensures that the person is aware of the person’s rights; and

facilitate appropriate involvement of close relatives, close friends and carers in treatment, care or support decisions in partnership with medical professionals; and

acknowledge the impact of mental disorder and mental illness on the close relatives, close friends and carers of people with a mental disorder or mental illness; and

recognise the experience and knowledge of close relatives, close friends and carers about a person’s mental disorder or mental illness; and

promote inclusive practices in treatment, care or support to engage families and carers in responding to a person’s mental disorder or mental illness; and

promote a high standard of skill and training for the people providing treatment, care or support.

For this Act, a person has capacity to make a decision in relation to the person’s treatment, care or support for a mental disorder or mental illness (decision-making capacity) if the person can, with assistance if needed—

understand when a decision about treatment, care or support for the person needs to be made; and

understand the facts that relate to the decision; and

understand the main choices available to the person in relation to the decision; and

weigh up the consequences of the main choices; and

understand how the consequences affect the person; and

on the basis of paragraphs (a) to (e), make the decision; and

communicate the decision in whatever way the person can.

In considering a person’s decision-making capacity under this Act, the following principles must be taken into account:

a person’s decision-making capacity is particular to the decision that the person is to make;

a person must be assumed to have decision-making capacity, unless it is established that the person does not have decision‑making capacity;

a person who does not have decision-making capacity must always be supported to make decisions about the person’s treatment, care or support to the best of the person’s ability;

a person must not be treated as not having decision‑making capacity unless all practicable steps to assist the person to make decisions have been taken;

a person must not be treated as not having decision‑making capacity only because—

the person makes an unwise decision; or

the person has impaired decision-making capacity under another Act, or in relation to another decision;

a person must not be treated as having decision-making capacity to consent to the provision of treatment, care or support only because the person complies with the provision of the treatment, care or support;

a person who moves between having and not having decision‑making capacity must, if reasonably practicable, be given the opportunity to consider matters requiring a decision at a time when the person has decision-making capacity.

A person’s decision‑making capacity must always be taken into account in deciding treatment, care or support, unless this Act expressly provides otherwise.

An act done, or decision made, under this Act for a person who does not have decision-making capacity must be done in the person’s best interests.

In considering a person’s decision‑making capacity under this Act, any approved code of practice under section 198 must be taken into account.

In this Act:

mental disorder—

means a disturbance or defect, to a substantially disabling degree, of perceptual interpretation, comprehension, reasoning, learning, judgment, memory, motivation or emotion; but

does not include a condition that is a mental illness.

In this Act:

mental illness means a condition that seriously impairs (either temporarily or permanently) the mental functioning of a person in 1 or more areas of thought, mood, volition, perception, orientation or memory, and is characterised by—

the presence of at least 1 of the following symptoms:

delusions;

hallucinations;

serious disorders of streams of thought;

serious disorders of thought form;

serious disturbance of mood; or

sustained or repeated irrational behaviour that may be taken to indicate the presence of at least 1 of the symptoms mentioned in paragraph (a).

For this Act, a person is not to be regarded as having a mental disorder or mental illness only because of any of the following:

the person expresses or refuses or fails to express, or has expressed or has refused or failed to express, a particular political opinion or belief;

the person expresses or refuses or fails to express, or has expressed or has refused or failed to express, a particular religious opinion or belief;

the person expresses or refuses or fails to express, or has expressed or has refused or failed to express, a particular philosophy;

the person expresses or refuses or fails to express, or has expressed or has refused or failed to express, a particular sexual preference or sexual orientation;

the person engages in or refuses or fails to engage in, or has engaged in or has refused or failed to engage in, a particular political activity;

the person engages in or refuses or fails to engage in, or has engaged in or has refused or failed to engage in, a particular religious activity;

the person engages in or has engaged in sexual promiscuity;

the person engages in or has engaged in immoral conduct;

the person engages in or has engaged in illegal conduct;

the person takes or has taken alcohol or any other drug;

the person engages in or has engaged in antisocial behaviour.

For this Act, a person is a carer if the person provides personal care, support or assistance to a person who has a mental disorder or mental illness.

However, a person is not a carer for another person—

in relation to care, support or assistance that is provided—

under a commercial arrangement, or an arrangement that is substantially commercial; or

in the course of doing voluntary work for a charitable, welfare or community organisation; or

as part of a course of education or training; or

just because the person is the domestic partner, parent, child or other relative, or guardian of the other person; or

just because the person lives with the other person.